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Bailey v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

January 5, 1996

MICHAEL BAILEY Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for HEAD & BAILEY CONSTRUCTION COMPANY Employer.

          Submitted: October 17, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary: 36-year old construction worker claimed roofing work on a particular job caused his condition of eczema dermatitis. Medical records contained conflicting statements from claimant as to the onset of the disease.

         Held: Claimant and his close relative witnesses were not credible in their testimony that skin condition arose during particular roofing job. Medical record stating condition arose several months prior was more credible. WCC also not persuaded roofing work triggered allergic reaction where board certified physicians testified such was not likely given the circumstances. At most, roofing work caused temporary aggravation of preexisting condition, not overall condition for which claimant sought compensation. Claim for injury under WCA denied.

         Topics:

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: Section 39-71-119, MCA (1991). 36-year old construction worker failed to persuade WCC that skin condition, diagnosed as eczema dermatitis, arose or was triggered on particular roofing job. No accident or injury occurred within WCA.

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: Section 39-71-119(5), MCA (1991). Subsection defining certain forms of alleged accidents as WCA injuries only if the accident is the "primary cause" of the physical harm applies to claim for compensation relating to eczema dermatitis condition. The subsection refers to "cardiovascular, pulmonary, respiratory, or other disease." While the word "disease" is not defined in the WCA or ODA, the dictionary definition of the word is broad enough to encompass dermatitis caused by allergens or environmental conditions.

         Injury and Accident: Accident. 36-year old construction worker failed to persuade WCC that skin condition, diagnosed as eczema dermatitis, arose or was triggered on particular roofing job. No accident or injury occurred within WCA.

         Injury and Accident: Primary Cause. Subsection defining certain forms of alleged accidents as WCA injuries only if the accident is the "primary cause" of the physical harm applies to claim for compensation relating to eczema dermatitis condition. The subsection refers to "cardiovascular, pulmonary, respiratory, or other disease." While the word "disease" is not defined in the WCA or ODA, the dictionary definition of the word is broad enough to encompass dermatitis caused by allergens or environmental conditions.

         Medical Conditions (By Specific Condition): Eczema Dermatitis. Subsection defining certain forms of alleged accidents as WCA injuries only if the accident is the "primary cause" of the physical harm applies to claim for compensation relating to eczema dermatitis condition. The subsection refers to "cardiovascular, pulmonary, respiratory, or other disease." While the word "disease" is not defined in the WCA or ODA, the dictionary definition of the word is broad enough to encompass dermatitis caused by allergens or environmental conditions. 36-year old construction worker failed to persuade WCC that particular roofing job was primary cause of skin condition, diagnosed as eczema dermatitis.

         The trial in this matter was held on October 5, 1994, in Great Falls, Montana. Petitioner, Michael Bailey (claimant), was present and represented by Mr. Randall O. Skorheim. Respondent, State Compensation Insurance Fund, was represented by Mr. Charles G. Adams. The claimant, Martha Bailey and Patricia Bailey testified at trial. In addition, the depositions of Catherine Steele, M.D., Michael Keiley, M.D., Bruce W. Richardson, M.D., and Robert A. Neill, M.D. were submitted for the Court's consideration. Exhibits 1 through 12 were admitted by stipulation.

         The parties sought and the Court permitted post-trial depositions and briefing. The case was submitted for decision on October 17, 1995, when the transcript of the final post-trial deposition was filed.

         Issues Presented: The claimant seeks a determination that he suffered a compensable industrial injury on August 11, 1992, and is, therefore, entitled to permanent total, permanent partial, or temporary total disability benefits retroactive to that date. He also seeks attorney fees, costs, and a penalty.

         Having considered the pretrial order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions, the exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1.At the time of trial, the claimant was 36 years old. He is married and resides in Havre, Montana.

         2.Claimant is a high school graduate. He has no further formal education.

         3.Claimant has been employed by Bailey & Head Construction for the last 15 years. The company is owned by his parents.

         4.Claimant's job encompasses carpentry, roofing, and concrete work. He has no supervisory responsibilities.

         5.In the summer of 1992, following a major hail storm in the Havre area, claimant did a large number of roofing jobs. By August 10, 1992, he had replaced eight or nine roofs. All of the roofs had asphalt composition shingles laid over tar paper and plywood sheeting. Claimant tore off the old shingles and tar paper and replaced them with new materials.

         6.On August 11, 1992, claimant began a roofing job three or four miles out of town at a farm house known as the McLaughlin Place. (Ex. 2 at 8.) The McLaughlin Place was an older home. Its roof consisted of asphalt composition shingles over an older layer of wood cedar shake shingles. The claimant was required to remove both layers of the old roof before re-shingling it.

         7.At trial the claimant testified that on the day he began work on the McLaughlin Place, the temperature reached approximately 85 to 90 degrees and that he was wearing work boots, socks, jeans and a T-shirt, but no gloves.

         8.He further testified that while working he developed a rash:

I'd say it was probably 1:00 or 2:00 in the afternoon I really started itching real bad, and I started getting these little clear blisters on me, on my sides . . ., on my legs, on my hands. None on my face.

(Tr. at 21.)

         9.In response to questions by the Court, claimant indicated the blisters first appeared on the anterior side of both arms between the wrist and elbow. He testified the blisters also developed down both sides of his trunk, on the front and side of both legs between the knee and ankle, and between his fingers. (Tr. at 22, 49-53.) However, in response to cross-examination he testified that the rash first developed on his legs and sides, and later spread to his hands. (Tr. at 38.)

         10.Claimant testified that he finished the McLaughlin Place in approximately five days but that the blisters and rash persisted. He further testified that he scratched the blisters, causing sores to develop, and that he finally consulted a physician when he "couldn't take it anymore." (Tr. at 22.)

         11.Claimant first consulted with Dr. Bruce W. Richardson, a family practitioner, on October 13, 1992. He was initially examined by Mike Kadrmas, a medical student working under Dr. Richardson. Kadrmas recorded the history given to him by claimant. Dr. Richardson testified that although he was not personally present during Kadrmas' examination and dictation of the note, he personally examined claimant and ...


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